Busbee v. State
| Decision Date | 20 January 1953 |
| Docket Number | 5 Div. 406 |
| Citation | 63 So.2d 290,36 Ala.App. 701 |
| Parties | BUSBEE v. STATE. |
| Court | Alabama Court of Appeals |
D. T. Ware, Roanoke, for appellant.
Si Garrett, Atty. Gen., and Wm. H. Sanders, Asst. Atty. Gen., for the State.
This appellant's jury trial under an indictment charging him with murder in the second degree resulted in a verdict of guilty as charged in the indictment. Judgment was entered pursuant to the verdict.
The evidence introduced in the trial below tends to show that the deceased, Willie B. Walker, was a son-in-law of appellant. The deceased and his wife had been living in appellant's home. The relationship between the two men had been strained. In fact earlier on the night of the killing they had argued and threats were exchanged. The appellant demanded that Walker leave his home, which he did.
A short time after Walker had left appellant and other members of the family were summoned to the home of another of appellant's daughters because of the serious illness of this second daughter.
It was decided to take this second daughter to a hospital, and on the way to the hospital the family stopped at appellant's home. The deceased also had returned.
A car containing appellant's wife and daughter (deceased's wife) arrived first at appellant's home on the return trip. The daughter entered the house and soon came out again on her way to a car. The deceased stopped her and they talked momentarily when the woman got into the car to leave.
As this car was backing out the appellant arrived at his home in an automobile driven by R. T. Lewis, and accompanied by three other friends.
The appellant stepped from the Lewis car carrying a shotgun. Walker, the deceased, was then seen walking toward the road from the direction of the house. As he approached the edge of the road (and appellant's then position) appellant fired the gun at him, inflicting a wound from which Walker died about a week later.
The appellant contended that when he shot the deceased was advancing rapidly on him with a large knife which he could see by the light reflected from the house and from the lights of a parked automobile, and that at the time he fired the deceased was so close upon him he had to fire the gun from his hip.
The evidence seems clear that the shooting took place in the yard of appellant's home. This yard was small, having a depth of about thirty feet.
The appellant's wife testified that deceased had stated to her just before the shooting that he was going to kill appellant, or get killed.
It is our conclusion that the verdict of the jury was authorized under the evidence presented by the State. The State's evidence tended to establish to the degree required all of the elements of murder in the second degree. These constituents have so often been written to that reiteration of them would serve no useful purpose. The trial court therefore did not err in overruling appellant's motion for a new trial because the evidence was insufficient to support the verdict.
It appears that although several witnesses were in the immediate area at the time none of them observed the actual shooting, and none of the witnesses saw a knife in deceased's hand, other than appellant.
It is our conclusion however that this cause must be reversed because of certain rulings of the court during the testimony of appellant's witness Owen Frost.
Mr. Frost, a teacher in the Tallapoosa County schools lived about 200 yards distance from appellant.
Upon hearing of the shooting he went to the locus of the offense 'early' the next morning, the shooting having occurred between eleven P.M. and midnight the preceding night. There he made an examination of the scene. Mr. Frost testified in detail as to certain distances, etc.
He was then asked two questions as to the location of certain blood spots observed by him. The State's objections were sustained to these questions. However no exceptions were reserved to these rulings. Nothing is presented therefore for our review in these instances.
Further questions were propounded to this witness seeking to elicit testimony as to whether he found a large knife there during his examination of the locus. The State's objections were sustained to these questions also, and exceptions were these times reserved to the court's rulings.
Upon later recall of Mr. Frost counsel for appellant again sought to elicit testimony as to the finding of a weapon...
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Ex parte Scott
...crime charged within a reasonable time and proximity after the commission of the crime is `always admissible.' Busbee v. State, 36 Ala.App. 701, 703, 63 So.2d 290, 292 (1953)." Parker v. State, 587 So.2d 1072, 1090 (Ala. Crim.App.1991). The trial judge did not abuse his discretion in allowi......
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Land v. State
...crime charged within a reasonable time and proximity after the commission of the crime is 'always admissible.' Busbee v. State, 36 Ala.App. 701, 703, 63 So.2d 290, 292 (1953)." Parker v. State, 587 So.2d 1072, 1090 The eyeglasses were admissible without establishing a chain of custody becau......
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Parker v. State
...crime charged within a reasonable time and proximity after the commission of the crime is "always admissible." Busbee v. State, 36 Ala.App. 701, 703, 63 So.2d 290, 292 (1953). XIV. The appellant objects to the admission of photographs of a video cassette recorder (VCR) found in the residenc......
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Whatley v. State
...crime charged within a reasonable time and proximity after the commission of the crime is ‘always admissible.’ Busbee v. State, 36 Ala.App. 701, 703, 63 So.2d 290, 292 (1953).”Parker v. State, 587 So.2d 1072, 1090 (Ala.Crim.App.1991), affirmed, 610 So.2d 1181 (Ala.1992), cert. denied, Parke......